Minutes June 2, 2009 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION June 2, 2009 The Rhode Island Ethics Commission held its 8th meeting of 2009 at 9:00 a.m. at the Rhode Island Ethics Commission conference room, located at 40 Fountain Street, 8thFloor, Providence, Rhode Island, on Tuesday, June 2, 2009, pursuant to the notice published at the Commission Headquarters and at the State House Library. The following Commissioners were present: Barbara R. Binder, Chair Frederick K. Butler Ross Cheit, Vice Chair Edward A. Magro J. William W. Harsch, Secretary Mark B. Heffner James V. Murray John D. Lynch, Jr. Also present were William J. Conley, Jr., Commission Legal Counsel; Kent A. Willever, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Staff Attorneys Jason Gramitt, Dianne L. Leyden and Esme DeVault; and Commission Investigators Peter J. Mancini and Gary V. Petrarca. At 9:04 a.m., the Chair opened the meeting. The first order of business was approval of minutes of the Open Session held on May 19, 2009. Upon motion made by Commissioner Butler and duly seconded by Commissioner Cheit, it was unanimously VOTED: To approve minutes of the Open Session held on May 19, 2009. ABSTENTIONS: J. William W. Harsch, James V. Murray and Edward A. Magro. The next order of business was that of advisory opinions. The advisory opinions were based on draft advisory opinions prepared by the Commission Staff for review by the Commission and were scheduled as items on the Open Session Agenda for this date. The first advisory opinion was that of Stephen R. Archambault, a member of the Smithfield Town Council. Commissioner Murray disclosed that the Petitioner is opposing counsel in a litigation matter in which he is involved, but he stated his belief that he can fairly participate. Edmund L. Alves, Jr., the Smithfield Town Solicitor, was present and informed that the Town fully supports the Commission Staff recommendation. The Petitioner was not present. Staff Attorney DeVault presented the Commission Staff recommendation. Commissioner Lynch inquired why the draft opinion addresses the Petitioner’s relationship with Attorney Robenhymer, given that the Petitioner did not request an opinion on that issue. Staff Attorney DeVault replied that it seems possible that Attorney Robenhymer could become involved. She stated that the Petitioner provided facts relating to their sharing of office space in his telephone conversations with her. Commissioner Lynch indicated that he is uncomfortable addressing the issue if the Petitioner did not ask for it. Staff Attorney DeVault advised that the facts presented raise the possibility of the situation occurring and the Petitioner represented that it could. She explained that the Staff frequently obtains oral representations from individuals requesting advisory opinions which are then incorporated into the draft opinion, unless a supplemental document would be required. Solicitor Alves advised that the Petitioner would recuse himself if Attorney Robenhymer were to represent the group before the Council. In response to Commissioner Lynch, Solicitor Alves informed that the Petitioner wants to make full disclosure and he wants the opinion to address the issue of his relationship with the other attorney. Commissioner Harsch inquired regarding how one reconciles the fact that an attorney/client relationship may have terminated, yet there remain ongoing obligations under the Rules of Professional Conduct. Legal Counsel Conley advised that, while some responsibilities may overlap, the Code of Ethics does not reach such issues as the ongoing duty of loyalty to a client. Commissioner Harsch expressed that he does not view his relationship with former clients as “terminated.” Legal Counsel Conley stated that in a series of past advisory opinions, cited to in the draft opinion, the Commission concluded that a relationship no longer exists under certain circumstances. While an argument could be made under the Rules of Professional Conduct that there are continuing duties, the argument does not apply under the Code of Ethics. Chair Binder noted that the opinion states that it only refers to application of the Code. Upon motion made by Commissioner Harsch and duly seconded by Commissioner Magro, it was unanimousl VOTED: To issue an advisory opinion, attached hereto, to Stephen R. Archambault, a member of the Smithfield Town Council. At approximately 9:15 a.m., upon motion made by Commissioner Lynch and duly seconded by Commissioner Magro, it was unanimously VOTED: To go into Executive Session pursuant to R.I. Gen. Laws § 42-46- 5(a)(2) and (4), to wit: a.) Motion to approve minutes of Executive Session held on May 19, 2009. b.) Status Update: William V. Irons v. The Rhode Island Ethics Commission, No. 2008-335-M.P. and 2009-01-M.P. c.) Motion to return to Open Session. The Commission returned to Open Session at approximately 9:44 a.m. Chair Binder reported that the Commission approved minutes of the Executive Session held on May 19, 2009 and received a status updates on William V. Irons v. The Rhode Island Ethics Commission. The next order of business was a discussion regarding Updating General Commission Advisories (GCA’s). Staff Attorney Gramitt advised that most of the GCA’s were written in 1988 and either need to be updated or, in some cases, need to be withdrawn. He informed that the Staff proposes to systematically update the opinions and present them to the Commission for action. He explained that GCA’s are a way for the Commission to broadcast how it interprets and applies sections of the Code with general application. He stated that Staff Attorney DeVault is drafting a new GCA on nepotism and that the Staff will recommend repeal of the former opinion. He also explained that process by which the Commission must twice vote on the adoption of any GCA, at separate meetings. Commissioner Cheit stated his belief that the issuance of new GCA’s could cut down on the number of advisory requests in several areas. Staff Attorney Gramitt suggested that the Commission may wish to adopt one relative to how much stock ownership is necessary to create a business association under the Code. Executive Director Willever asked whether the members who have served as municipal solicitors would find it helpful to refer to the updated GCA’s on the Commission website. Commissioner Harsch replied in the affirmative and stated that the Commission should consider issuing new GCA’s in other areas. Commissioner Cheit suggested an opinion outlining what constitutes a “hardship” under the Code. Commissioner Heffner inquired whether the Commission should also be revisiting its regulations. Staff Attorney Gramitt explained that, in the course of drafting an opinion, the Commission may determine that it makes more sense to redraft the law, which is what happened with the nepotism regulation. In such case, he advised that the Commission can then proceed with rule-making under the Administrative Procedures Act. He indicated that Commissioners should inform the Staff of any areas of the Code which they believe would benefit by regulation. The next order of business was the Director’s Report. Executive Director Willever reported that the Commission is moving into the Financial Disclosure reminder period. He advised that, at Commissioner Murray’s suggestion, the Commission began sending out reminder letters to increase compliance, which has been very effective. He informed that additional Staff contact with municipal solicitors has also increased compliance, which reached approximately 94% last year. As to the budget, he advised that the Commission had its hearing before the House Finance Committee, but has not received notification of a hearing before the Senate Finance Committee. He indicated that he is satisfied that the Commission can continue to operate within the proposed FY 2010 budget. He expressed that he is pleased that the Commission has all twelve FTE positions filled and is up to its full complement of nine Commissioners. Director Willever informed that education continues to be a priority, with Staff Attorney Gramitt and Commission Investigators providing training to the State Police and municipal police departments. He reported that Staff Attorney Gramitt will be presenting ethics seminars for the Rhode Island Bar Association’s Annual Meeting, as well as the Attorney General’s Open Government Summit. He advised that the Staff is working on a new online training component for the Commission’s website. The next order of business was a status update and scheduling of a workshop regarding the participation of public officials who are union members in actions involving a different bargaining unit of the same umbrella labor union. Staff Attorney Gramitt informed that the Commission requested public comment on the issue, both by website posting and via US mail. Thus far, only one comment has been received. He indicated that comments will likely be received after the Commission announces a date certain for the workshop. Chair Binder suggested that the workshop be scheduled for June 16th. The next order of business was New Business, of which there was none. The Commission took a brief recess at 10:02 a.m. and reconvened at approximately 10:10 a.m. The next order of business was a Request for Reconsideration/Rehearing of Advisory Opinion No. 2009-22, issued to Christopher Warfel, P.E., a member of the Town of New Shoreham Electric Utility Generation Task Group. The Petitioner was present. Chair Binder inquired why the Petitioner was not present when the opinion was issued and why the Commission should hear it again. The Petitioner replied that he did not know that it was on the agenda and that he had specifically requested that it not be placed on the agenda. In response to Commissioner Cheit, he stated that he did not look at the Commission website and that he does not recall the language contained in the letter he received from the Commission along with the draft opinion. In response to Commissioner Lynch, the Petitioner stated that he made a request to Staff Attorney Gramitt not to be included on the agenda. Staff Attorney Gramitt explained that the matter had been scheduled to be on previous agendas, but the Petitioner had requested that it be continued. He stated that, based upon review of his email communications with the Petitioner, he advised the Petitioner that the matter was on the agenda and it could be taken off if the Petitioner informed the Commission that he could not be present. Staff Attorney Gramitt indicated that he did not hear back from the Petitioner. He stated that he sent him an email the day before the meeting, to which he did not receive a reply. After the meeting, he advised the Petitioner by telephone that it went forward and of the result. He agreed that apparently there was a miscommunication. In response to Commissioner Cheit, Staff Attorney Gramitt stated that the Commission issues anywhere from forty to between sixty or seventy advisory opinions, depending upon the year. In about a third of those opinions, the petitioner does not appear before the Commission. The Petitioner agreed that there was a miscommunication. He stated that the matter was to be placed on the agenda several times previously and in each case he had requested that it not be on the agenda. He apologized for the delay. In response to Commissioner Cheit, Staff Attorney Gramitt clarified that the Town Manager’s correspondence was not received until recently, after the Commission issued the opinion. Commissioner Cheit expressed his understanding regarding the Petitioner’s problems getting here from Block Island; however, he wanted to make sure that the Commission is not opening the door for rehearing in other cases where the petitioners were not present. Upon motion made by Commissioner Butler and duly seconded by Commissioner Cheit, it was unanimously VOTED: To grant the request of the Petitioner, Christopher Warfel, P.E., to reconsider/rehear Advisory Opinion No. 2009-22. Staff Attorney Gramitt recapped the facts and analysis of the issued opinion. He advised that the Staff does not believe that the additional information provided by the Petitioner alters the analysis. He noted that the Petitioner bid on the solar project and the Town has selected him on two projects, subject to grant funding. He stated that the issue now is whether he can accept that employment because he wrote the RFP. Staff Attorney Gramitt indicated that the Petitioner claims to have written the RFP in a generic way, so as not to provide him with any advantage, yet he was the only one who could draft it based upon his unique experience. He informed that, according to the Town, the Town Engineer could not draft the RFP because it was beyond his expertise. The Petitioner advised that he was unaware that he had been awarded the bids and also did not know that the Town Engineer had refused to do the work. He informed that the Town had only had one month to put together the RFP before the Rhode Island Economic Development deadline would expire. He stated that he asked if he could help write the bid specifications and drafted them from one he had prepared ten years earlier, only altering the specifications for kilowatts and amp hours. He noted that he also wrote “and their successors” in reference to out-of-date Code citations. He stated that the Town added their contractual boilerplate language and published the RFP. Commissioner Cheit asked whether you would have to be one of the six hundred people in the country with the Petitioner’s credentials in order to draft the RFP. The Petitioner replied in the negative and stated that, although it is not a common skill, he believes more people could do it. He also stated that the Town does not really have an engineer and the individual it refers to is a civil engineer. In further response to Commissioner Cheit, the Petitioner stated his belief that people in Rhode Island could have drafted the RFP. He expressed that there was not enough time for the Town, which was trying to save money, to respond. Commissioner Cheit commented that the Petitioner referred to there being a one month period to respond, yet he had turned down their request two months earlier. The Petitioner clarified that it was really a three month period. Chair Binder voiced her belief that one of the problems is that the Petitioner stated in his request letter that he did not want to draft the RFP because he knew there was a conflict. The Petitioner responded that he only provided two bits of information to a prior RFP. Commissioner Cheit pointed out that the Petitioner said that he had a conflict at the outset. The Petitioner replied that he would have a conflict if he wrote a professional RFP from scratch. He clarified that here he took ten year old boilerplate and changed the kilowatt hours and amps. Commissioner Cheit expressed that the Petitioner is asking the Commission to evaluate whether the RFP’s were written in a particular way, but the Commission cannot make those judgments because it takes expertise to do so. The Petitioner questioned whether it would be a conflict if the Town took a prior work and re-issued it, without him being intimately involved in the process. Commissioner Cheit commented that the Town put the Petitioner in this position. The Petitioner agreed. He stated that his approach was so that the Town could meet the deadline, which it did, and he could avoid a messy situation. Commissioner Cheit stated his belief that the Petitioner tried to do this in a way so as not to favor himself, but the process is what is at issue. Commissioner Magro concurred and stated that it is not the Petitioner’s personal integrity, but the integrity of the process, that is at issue. He noted that, although the Town put the Petitioner in a bad position, the Petitioner went into it with his eyes wide open. The Petitioner informed that the bids were very close, which indicates a good bidding process. In response to Commissioner Harsch, the Petitioner clarified that he wrote the RFP used from ten years ago. Commissioner Harsch inquired whether there would be an issue if it were only a question of using the ten year old RFP without any updates to it. Staff Attorney Gramitt indicated that it would be a judgment call for the Commission to make, but he stated that he would not be as concerned if the decision to use it was made by an independent third party. In response to Commissioner Lynch, Staff Attorney Gramitt clarified that the Petitioner did not have safe harbor when he bid because the draft opinion stated that the Petitioner could not bid. In further response, Staff Attorney Gramitt stated that the matter could come back to the Commission as a complaint, or the Town could change its mind and obtain different contractors. He indicated that the opinion is moot as far as bidding is concerned, but there remains the question of whether he may accept the employment. Commissioner Lynch asked what would happen if the Petitioner withdraws his bid today. Staff Attorney Gramitt noted that the bidding already took place. In response to Commissioner Cheit, Staff Attorney Gramitt indicated that, while there is no exception written into 5(h), the Commission has applied its own exception when the hardship is to the Town, and likely could have fashioned a remedy to minimize any conflict. Commissioner Cheit stated that he is sympathetic to the Petitioner’s position, which the Town placed him in, but the Commission could have issued him an opinion very quickly. The Petitioner informed that there was a one week bidding period. He represented that he was not trying to fly in the face of the Commission, as the opinion had not issued. He noted that he was not qualified to bid on the wind turbine projects. In response to Commissioner Harsch, the Petitioner stated that the Town Manager advised him that she would provide access for the Town Solicitor to come before the Commission. He stated that he spoke with the Solicitor on the phone, at which time she said that she would have to talk to the Town Manager to get authorization to talk any further, which never happened. He noted that the Town Council directed the Town Manager to provide him with the necessary support. In response to inquiry regarding what action the Commission must take, Legal Counsel Conley confirmed that their decision to rehear the matter effectively withdraws the issued opinion. Chair Binder and Commissioner Cheit reiterated that they feel sympathetic toward the Petitioner, but the Town put him in this position. Upon motion made by Commissioner Butler and duly seconded by Commissioner Magro, it was unanimously VOTED: To approve the Staff recommendation, affirming Advisory Opinion No. 2009-22. At approximately 10:55 a.m., upon motion made by Commissioner Cheit and duly seconded by Commissioner Lynch, it was unanimously VOTED: To adjourn. Respectfully submitted, __________________ J. William W. Harsch Secretary